RASHMI REKHA THATOI vs. STATE OF ORISSA .

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 750 OF 2012 (Arising out of S.L.P. (Criminal) No. 7281 of 2011 Rashmi Rekha Thatoi & Anr. ... Appellants Versus State of Orissa & Ors. ... Respondents WITH CRIMINAL APPEAL NO. 751 OF 2012 (Arising out of S.L.P. (Criminal) No. 7286 of 2011 J U D G M E N T JUDGMENT Dipak Misra, J. Leave granted in both the petitions. 2. “Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.” Thus spoke Bolingbroke. Page 1 2 3. Liberty is the precious possession of the human soul. No one would barter it for all the tea in China. Not for nothing Patrick Henry thundered: "Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God ! I know not what course others may take, but as for me, give me liberty, or give me death !" The thought of losing one's liberty immediately brings in a feeling of fear, a shiver in the spine, an anguish of terrible trauma, an uncontrollable agony, a penetrating nightmarish perplexity and above all a sense of vacuum withering the very essence of existence. It is because liberty is deep as eternity and deprivation of it, infernal. May be for this protectors of liberty ask, "How acquisition of entire wealth of the world would be of any consequence if one's soul is lost?" It has been quite often JUDGMENT said that life without liberty is eyes without vision, ears without hearing power and mind without coherent thinking faculty. 4. Almost two centuries and a decade back thus spoke Edmund Burke: - “Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is Page 2 3 above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.” 5. Similar voice was echoed by E. Barrett Prettyman, a retired Chief Judge of U.S. Court of Appeals:- “In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematized restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because 'they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realization, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity.” JUDGMENT 6. Keeping the cherished idea of liberty in mind, the fathers of our Constitution engrafted in its Preamble: "Liberty of thought, expression, belief, faith and worship." After a lot of debate in the Page 3 4 Constituent Assembly, Article 21 of the Constitution came into existence in the present form laying down in categorical terms that no person shall be deprived of his life and personal liberty except according to the procedure established by law. 7. We have begun with the aforesaid prologue, as the seminal question that falls for consideration in these appeals is whether the High Court, despite the value attached to the concept of liberty, could afford to vaporise the statutory mandate enshrined under Section 438 of the Code of Criminal Procedure (for short ‘the Code’). It is not to be forgotten that liberty is not an absolute abstract concept. True it is, individual liberty is a very significant aspect of human existence but it has to be guided and governed by law. Liberty is to be sustained and achieved when it sought to be taken away by permissible legal parameters. A court of law is JUDGMENT required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy. 8. Presently to the narration. In these two appeals arising out of SLP No. 7281 of 2011 and 7286 of 2011, the challenge is to the orders dated 22.07.2011 and 05.08.2011 in BLAPL No. 13036 of 2011 and 12975 of 2011 respectively passed by the High Court of Judicature of Orissa at Cuttack in respect of five accused Page 4 5 persons under Section 438 of the Code pertaining to offences punishable under Section 341/294/506 and 302 read with Section 34 of the Indian Penal Code (for short “the IPC”) in connection with Binjharpur PS Case No. 88/2011 corresponding to GR Case No. 343 of 2011 pending in the Court of learned SDJM, Jajpur. 9. The present appeals have been preferred by the sister of the deceased and the complainant, an eye witness, seeking quashing of the orders on the foundation that the High Court has extended the benefit of Section 438 (1) of the Code in an illegal and impermissible manner. 10. The facts that had formed the bedrock in setting the criminal law in motion need not be stated, for the nature of JUDGMENT orders passed by High Court in both the cases have their own peculiarity. If we allow ourselves to say they have the enormous potentiality to create colossal puzzlement as regards the exercise of power under Section 438 of the Code. 11. While dealing with the case of accused Uttam Das and Ranjit Das, vide order dated 22.07.2011 the High Court, as stated, perused the case file and passed the following order. Page 5 6 “Considering the facts and circumstances of the case and the materials available on record, this Court is not inclined to grant anticipatory bail to the petitioners. This court directs that if petitioner No. 1 Uttam Das surrenders before the learned S.D.J.M., Jajpur and moves an application for bail in the aforesaid case, in such event the learned S.D.J.M. shall release him on bail on such terms and conditions as may he deem fit and proper . So far as petitioner No. 2 Ranjit Das is concerned, this court directs him to surrender before the learned S.D.J.M., Jajpur and move an application for bail in connection with the aforesaid case, in such event his application shall be considered by the learned S.D.J.M., on its own merits. The Bail Application is accordingly disposed of.” [Underlining is ours] 12. In the case of the other accused persons, namely, Abhimanyu Das, Murlidhar Patra and Bhagu Das the High Court JUDGMENT on 05.08.2011 passed the order on following terms. “Considering the facts and circumstances of the case this Court is not inclined to grant anticipatory bail to the petitioners. Since there are some materials against Bhagu Das @ Sanjit Kumar Das petitioner No. 3, this Court directs that in case petitioner No. 3 surrenders before the leaned S.D.J.M., Jajpur and moves an application for bail, the learned S.D.J.M. shall consider and dispose of the same on its own merit in accordance with law. Page 6 7 far So as the prayer for bail of petitioner Nos. 1 and 2 is concerned since one of the co- accused namely, Uttam Das has been released bail on in pursuance of order dated 02.07.2011 passed by this Court in BLAPL No. 13036 of 2011 and petitioner Nos. 1 and 2 stands on similar footing with co-accused Uttam Das, this Court directs that in case petitioner Nos. 1 and 2 surrender before the learned S.D.J.M., Jajpur and move an application for bail, the learned S.D.J.M., shall release them on bail on such terms and conditions as he may deem fit and proper with further condition that petitioner Nos. 1 and 2 shall give an undertaking before the Court below that they will not commit any similar type of offence . In case any complaint is received against them that will amount to cancellation of bail” [Emphasis supplied] 13. On a perusal of both the orders it is perceivable that the commonality in both the orders is that while the High Court had expressed its opinion that though it is not inclined to grant JUDGMENT anticipatory bail to the petitioners yet it has directed on their surrender some of the accused petitioners would be enlarged on bail on such terms and conditions as may be deemed fit and proper by the concerned Sub Divisional Judicial Magistrate and cases of certain accused persons on surrender shall be dealt with on their own merits. Page 7 8 14. The learned counsel for the petitioner has contended that the High Court has gravely flawed in passing such kind of orders in exercise of power under Section 438 of the Code which the law does not countenance and, therefore, they deserved to be lancinated. It is his further submission that when the accused persons are involved in such serious offences the High Court could not have dealt with them by taking recourse to an innovative method which has no sanction in law. 15. The learned counsel for the respondent made a very feeble attempt to support the orders. 16. The pivotal issue that emanates for consideration is whether the orders passed by the High Court are legitimately acceptable and legally sustainable within the ambit and sweep of Section JUDGMENT 438 of the Code. To appreciate the defensibility of the order it is condign to refer to Section 438 of the Code which reads as follows. “ 438. Direction for grant of bail to person apprehending arrest .--(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking Page 8 9 into consideration, inter alia , the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of JUDGMENT Page 9 10 final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).” JUDGMENT Page 10 11 17. The aforesaid provision in its denotative compass and connotative expanse enables one to apply and submit an application for bail where one anticipates his arrest in a non- bailable offence. Though the provision does not use the expression anticipatory bail, yet the same has come in vogue by general usage and also has gained acceptation in the legal world. 18. The Constitution Bench in Gurbaksh Singh Sibbia etc. v. 1 The State of Punjab , has drawn a distinction between an order of ordinary bail and order of anticipatory bail by stating that the former is granted when the accused is in custody and, therefore, means release from the custody of the Police, and the latter is granted in anticipation of arrest and hence, effective at the very moment of arrest. It has been held therein, an order of anticipatory bail constitutes, so to say, an insurance against JUDGMENT Police custody falling upon arrest for offences in respect of which the order is issued. Their Lordships clarifying the distinction have observed that unlike a post-arrest order of bail, it is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in 1 AIR 1980 SC 1632 Page 11 12 respect of which the direction is issued, he shall be released on bail. 19. The Constitution Bench partly accepted the verdict in 2 Balchand Jain v State of Madhya Pradesh by stating as follows:- “We agree, with respect, that the power conferred by S. 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Ss. 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection.” 20. Thereafter, the larger Bench referred to the concept of liberty engrafted in Article 21 of the Constitution, situational and circumstantial differences from case to case and observed that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from JUDGMENT some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would 2 AIR 1976 SC 366 Page 12 13 not be made. However, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally,

Court has to take into consideration the combined effect of

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the Bench culled out the principles laid down in Gurbaksh Singh (supra). Some principles which are necessary to be reproduced are as follows:- “ (i) Before power under Sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section. JUDGMENT ii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. viii) An interim bail order can be passed under Section 438 of the Code without notice to the 3 (2009)8SCC325 Page 14 15 Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad- interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.” 23. At this juncture we may note with profit that there was some departure in certain decisions after the Constitution Bench decision. In Salauddin Abdulsamad Shaikh v. State of 4 Maharashta , it was held that it was necessary that under certain circumstances anticipatory bail order should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular court to deal with the matter on appreciation of material placed before it. JUDGMENT 5 24. In K. L. Verma v. State and Anr . , it was ruled that limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the court for regular bail and to give the regular court sufficient time to determine the bail application. It was further observed therein that till the bail application is disposed of one way or the 4 AIR 1996 SC 1042 5 (1998) 9 SCC 348 Page 15 16 other, the Court may allow the accused to remain on anticipatory bail. 6 25. In Nirmal Jeet Kaur v. State of M. P. and Another , the decision in K. L. Verma’s case (supra) was clarified by stating that the benefit of anticipatory bail may be extended few days thereafter to enable the accused persons to move the High Court if they so desire. 7 26. In Adri Dharan Das v. State of West Bengal , a two- Judge Bench while accepting for grant of bail for limited duration has held that arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the JUDGMENT connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For 6 ( 2004) 7 SCC 558 7 (2005) 4 SCC 303 Page 16 17 these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. 27. After analysing the ratio in the cases of Salauddin Abdulsamad Shaikh (supra), K. L. Verma (supra), Nirmal Jeet

“14. After analyzing the crucial question is when a person is in custody, within the meaning of Section 439 of the Code, it was held in Nirmal Jeet Kaur's case (supra) and Sunita Devi's case (supra) that for making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case (supra) the protection in 8 (1980) 2 SCC 559 Page 17 18

9 AIR 2009 SC 254 10 (2005) 7 SCC 56 Page 18 19

11 (2005) 1 SCC 608 12 (2011) 1 SCC 694 Page 19 20

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13 2008 (6) SCALE 415 Page 21 22

14 (2001) 6 SCC 338 Page 22 23

15 (2006) 13 SCC 737 16 (2006) 1 SCC 479 Page 23 24

……………………………….J. [Dipak Misra]

JUDGMENT Page 24